The trial judge erred in granting the motions to suppress the deposition.
Appellants' counsel wished to take the deposition of a witness residing in New York State and on December 8, 1969, filed proper notice and mailed same by certified mail to appellee's counsel on the same date. That notice recited the style of the case, was addressed to the defendant and his counsel at counsel's Atlanta address, the notice containing the following language: "You are hereby notified that on Monday, December 29, 1969, beginning at ten o'clock (10:00) A.M., EST, at the Special Term Part II, Supreme Court, New York County, located at 60 Centre Street, City and State of New York, Peter W. Quinn, Esquire, or his designee, will proceed on behalf of plaintiff in this action to take the deposition of Milton Baron of 410 Park Avenue, New York, New York, upon oral examination pursuant to the provisions of Ga. Code Ann. 81A-126 and 130. The deposition will be taken before some officer duly authorized by law to take depositions. The oral examination will continue from day to day until its completion. You may attend and cross examine." The notice was dated and signed by appellants' counsel, showing his Atlanta address and telephone number.
There can be no doubt that this notice was complete and proper in every requirement of the statute and the record shows that said notice was received by appellee's counsel.
Subsequent to said notice the witness employed counsel, and appellee's counsel was advised of this fact. By agreement between the witness's counsel in New York and counsel for the appellants and appellee it was mutually agreed through an exchange of correspondence and by telephone to change the date of the taking of the deposition from December 29, 1969, to January 12, 1970. Appellee's counsel agreed to this change as shown by a copy of his letter to appellants' Atlanta and New York counsel.
Subsequent to this exchange of correspondence and the agreement on the January 12, 1970, date, all other specifics remaining the same, counsel for the witness filed a motion in a New York court for a protective order which suspended the January 12, 1970, scheduled date for the deposition. Appellants' counsel promptly informed appellee's counsel of this development and advised that he would notify him of the new date set down by the New York court for the deposition. On January 26, 1970, appellants' Atlanta counsel was notified by appellants' New York counsel that the New York court had issued a memorandum decision on January 23, 1970, to the effect that the witness could be deposed on February 5, 1970, the subsequent written order providing that "the examination of the witness, Milton Baron, proceed at Special Term, Part II of this court on the fifth day of February, 1970 at Ten o'clock in the forenoon that day thereof . . ." Promptly by letter dated January 26, 1970, appellants' Atlanta counsel wrote appellee's counsel advising him of the new date set for the deposition, said letter reading in part as follows: "Mr. Quinn [appellants' New York counsel] has informed me that the New York court has ruled that Mr. Baron may be deposed in this matter on February 5, 1970 at 10 a.m . . . Consequently, I assume that you will be present on that date to represent the interest of your client."
The record shows that this letter was received by appellee's counsel on or before January 28, 1970, some eight days prior to the new date set for the taking of the deposition. According to the record there was no further communication between appellants' counsel and appellee's counsel until February 5, 1970, when appellants' Atlanta counsel was advised by appellants' New York counsel that the taking of the deposition was ready to proceed and that appellee's counsel was not present. Appellants' Atlanta counsel then called appellee's counsel who advised him that he had not marked the date on his calendar and had planned to play golf on that afternoon. According to appellee's counsel he had made an unsuccessful effort to contact appellants' counsel at some time on February 4, 1970.
On the morning of February 5, 1970, appellee's counsel sent the following telegram to appellants' New York counsel: "Medical emergency 1 p.m. 4 February prevents attendance deposition Baron stop Request postponement and mutual resetting stop To date, only informal and tentative date set object to taking of deposition without formal notice containing definite date."
The record shows that this telegram was received by counsel in New York at 12:20 p.m. on February 5, 1970, some two hours after the deposition had begun. The taking of the deposition was concluded at 4 p.m. February 6, 1970.
On the basis of these facts, the trial court granted the appellee's motions to suppress the deposition.
The first notice of taking of the deposition fully complied with the requirements of Code Ann. 81A-130 (a) by giving the name and address of the person to be deposed and the time and place of taking the deposition. Due to circumstances beyond the control of counsel for appellants and appellee, a new date had to be agreed upon. This was the only departure from the original notice, and the record shows that the setting of the January 12th date was handled in an informal manner between counsel by letters and telephone communication. The setting of the February 5th date was likewise handled in an informal manner by a letter from appellants' counsel to appellee's counsel, received at least 8 days prior to the scheduled date. If appellee's counsel insisted at this stage that he was entitled to a new formal notice of the taking, Code Ann. 81A-132 (a) clearly required him to promptly notify appellants' counsel. Under this Code section "all errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice. " (Emphasis supplied). This was not done and appellants' counsel did not receive any communication from appellee's counsel until after the time set for the taking of the deposition.
While the statute requires a proper notice for the taking of a deposition, it wisely requires the opposite party to promptly notify the party giving the notice if the notice is technically defective in any manner. Otherwise, the statute would allow counsel so inclined to "sit back", allow the opposite party to proceed at considerable expense with the deposition only to have it thrown out on some technical defect in the notice. If the law is reduced to this, as Mr. Bumble said in Oliver Twist, "the law is an ass, a idiot." The rationale of the provision requiring that written objection to a defective notice be made promptly, failing which the error or irregularity in the notice is deemed to have been waived, is the same as that in the provision requiring that objection to the evidence be made at the time of taking the deposition. See Ector v. Welsh, 29 Ga. 443, 447.
Law is based on reason, and the statute itself (Code Ann. 81A-130 (a)) requires that a party desiring to take a deposition shall "give reasonable notice in writing" to the opposite party. In this case complete and legal notice was given as required by the statute. The later change in dates was handled on an informal basis between counsel. It is therefore unreasonable, under the record in this case, for appellee's counsel to now contend that he did not have reasonable notice of the time, place, and date for the taking of the deposition.
The trial court erred in granting the motions to suppress the deposition.
PANNELL, Judge, concurring specially.
I concur with the majority opinion that the deposition taken by the appellant should have been allowed in evidence, but not for all the reasons given. The majority, in part, rely upon the original notice, and in effect make the original notice a part of the subsequent notice given after it was decided that the witness must testify over his objections. In Associated Transport, Inc. v. Riss & Co., Inc., 8 FRD 99, it was held that where there was such a delay in the taking of the deposition, a subsequent notice of the taking of the deposition of the witness cannot be aided by the notice previously given. As was said in that case: "The purpose of Rule 30 (a) [Section 30 (a) of the Georgia Civil Practice Act, Code Ann. 81A-130 (a)] is plainly to give a party full notice of the time and place that a deposition is to be taken. If the other party is required to postpone the taking of the deposition in order to first obtain leave of court, or for any other reason, th[e]n the notice originally given becomes meaningless and a new notice is needed. There is nothing in the Rules to indicate that one written notice satisfies the requirements even though the deposition is not taken until a later date." The appellee, not having promptly made objection upon receiving the second notice, waived any right to object to the admission of the deposition in evidence which he could have urged to the notice itself, and which he failed to do as required by law. Section 32 (a) of the Georgia Civil Practice Act (Code Ann. 81A-132 (a); Federal Rules of Civil Procedure, 32 (d) (1)); 4 Moore's Federal Practice, par. 32.11, p. 32-47, and par. 30.57, p. 30-95.
It is for these reasons and these reasons alone that I concur in the majority opinion.
WHITMAN, Judge, concurring specially.
I concur in the special concurring opinion of Judge Pannell. I do not agree with the majority opinion that Code Ann. 81A-132 (a) could relate to the original notice of the taking of depositions, given pursuant to Code Ann. 81A-130 (a). I do agree with the special concurring opinion of Judge Pannell, which relates Code Ann. 81A-132 (a) to the "second notice" referred to in that opinion, which I assume relates to the letter notice of date January 26, 1970, as stated therein.